Coming Up in 2017: Arkansas Tries to Limit Abortion Access… Again

Legislators in Arkansas have been busy over the last few years attempting to regulate access to abortion for women across the state. Their latest effort culminated in the pre-filing of HB 1032 also known as The Arkansas Unborn Child Protection From Dismemberment Abortion Act. This bill attempts to chip away at constitutionally protected rights under Roe v. Wade by targeting the dilation and evacuation (D and E) procedure.

What is a D and E?

According to the The American College of Obstetricians and Gynecologists, a D and E is:

“…a surgical procedure in which the cervix is dilated and the contents of the uterus are removed.”

From the text of HB 1032 it is:

“… an abortion performed with the purpose of causing the death of an unborn child that purposely dismembers the living unborn child and extracts one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp a portion of the body of the unborn child.”

The bill’s sponsor and author Representative Andy Mayberry said he chose the language he did because “dismemberment is a little more descriptive” and “a little more accurate in reflecting what the procedure does.”

The bill continues on to state that dismemberment abortion does not include “…an abortion that uses suction to dismember the body parts of an unborn child into a collection container.” This statement appears to attempt to differentiate between a vacuum aspiration (typically done prior to 14 weeks) and a d and e (typically done after 14 weeks).

What would the impact of this ban be in Arkansas?

The most recent CDC Abortion Surveillance Report is from 2013 and notes that 3,730 abortions were reported in that year in Arkansas. 646 (17.4%) of those were medical abortions and the remaining 3,084 (82.6%) were surgical. Surgical abortions are not broken down by procedure in this report, and therefore include more than just D and E procedures. However, 464 (12.4%) of those surgical abortions occurred after 13 weeks. Since a D and E is the recommended method for pregnancies after the 12-14 week mark, this law would severely limit options available to providers and women in the second trimester of pregnancy. In 2013 alone, this law could have impacted as many as 464 women since D and E procedures are the most commonly used procedure in second trimester abortions.

Laura McQuade, the CEO of Planned Parenthood Great Plains, which operates clinics in Arkansas, called HB 1032 an “ideological attack designed to shame and stigmatize safe and legal abortion.”

The proposed bill notably includes no exceptions for rape, incest, or fatal fetal abnormalities (such fetal anomalies are often undetectable until the second trimester). The only exception appears to be if there is a serious health risk to the pregnant woman which is defined as when an abortion is necessary to “avert either the death of the pregnant woman or the serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” What does not meet the requirement for a serious health risk to the pregnant woman is “a psychological or emotional condition” which completely excludes trauma situations.

This proposed law is a Class D felony and therefore punishable by up to 6 years in prison and a fine of up to $10,000 for any physician that violates it according to the Arkansas Sentencing Commission.

How has this type of legislation been received in other states?

Four states enacted D and E bans this year including Louisiana (HB 1081), Mississippi (HB 519), and Alabama (SB 363) as well as West Virginia when the legislature voted to override the governor’s veto (SB 10).

In Oklahoma (HB 1721) and Kansas (SB 95), D and E bans were blocked by the courts at the state level.

It will be interesting to see which side of the divide Arkansas lands on when the dust has settled.

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